Trial court erred by denying defendant’s motion to vacate his 1989 drug conviction where his trial attorney’s advice regarding the immigration consequences of a plea was erroneous. Defendant moved to vacate his 1989 guilty plea to possession of drugs for sale based on his trial attorney’s erroneous advice regarding the immigration consequences of the plea. His trial attorney signed a declaration stating that he had advised defendant, a lawful permanent resident, that his plea would not have adverse immigration consequences. In taking the plea, the trial court told defendant about possible immigration consequences. The federal government instituted deportation proceedings against defendant as a result of his plea. His motion was denied and he appealed. Held: Reversed. Penal Code section 1473.7, effective January 1, 2017, allows a person no longer in actual or constructive custody to file a motion to vacate a conviction that is invalid due to prejudicial error damaging the moving party’s ability to understand the immigration consequences of a guilty plea. Here, trial counsel affirmatively misadvised defendant regarding the immigration consequences of his guilty plea after defendant expressed concerns about immigration consequences. This was an objectively deficient performance under prevailing professional norms at the time of defendant’s guilty plea. The fact the trial court advised defendant of possible immigration consequences did not preclude defendant from establishing that counsel’s incorrect advice prejudiced him. Defendant established there was a reasonable probability he would not have entered the plea if properly advised.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B283427.PDF